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The dispute between Universal City Studios, Inc. (“Universal”) and Nintendo Co., Ltd. (“Nintendo”) arose when Donkey Kong became enormously popular in 1981 and 1982. The game was played by millions of Americans, including some of the top management at Universal, who concluded that it reminded them of King Kong. Universal filed a lawsuit against Nintendo, alleging claims for trademark infringement and unfair competition. Universal alleged that Nintendo infringed Universal's trademark in King Kong when it marketed its popular video game Donkey Kong.

After filing the lawsuit, Universal sent “cease and desist” letters to all of Nintendo's licensees demanding that each licensee either cease marketing Donkey Kong products or obtain a license from Universal.

first, Universal knew that it did not have trademark rights to King Kong, yet it proceeded to broadly assert such rights anyway. This amounted to a wanton and reckless disregard of Nintendo's rights. Second, Universal did not stop after it asserted its rights to Nintendo. It embarked on a deliberate, systematic campaign to coerce all of Nintendo's third partylicensees to either stop marketing Donkey Kong products or pay Universal royalties. Finally, Universal's conduct amounted to an abuse of judicial process, and in that sense caused a longer harm to the public as a whole. Depending on the commercial results, Universal alternatively argued to the courts, first, that King Kong was a part of the public domain, and then second, that King Kong was not part of the public domain, and that Universal possessed exclusive trademark rights in it. Universal's assertions in court were based not on any good faith belief in their truth, but on the mistaken belief that it could use the courts to turn a profit.